2 40 UTAH LAW REVIEW [2000: 39 B. Applying the Ninth Circuit s Test for Religion C. Do Religious Implications Turn a Theory into Religion? D. Extending Edwards v. Aguillard to Cover Design Theory?.. 90 E. The Legal Differences Between Creation Science and Design Theory F. A Residual Lemon Objection G. Back to Spokes VII. IS IT SPEECH? DESIGN THEORY AND VIEWPOINT DISCRIMINATION A. The Rosenberger Revolution B. Edwards v. Aguillard Revisited VIII. CONCLUSION I. INTRODUCTION One can hardly imagine a more contentious issue in the American culture wars than the debate over how biological origins should be taught in the public schools. On the one hand, the National Academy of Sciences, the National Center for Science Education, and the American Civil Liberties Union have insisted that any departure from a strictly Darwinian approach to the issue constitutes an attack on science itself, and even an unconstitutional intrusion of religion into the public school science curriculum. On the other hand, many parents and religious activists have long rebelled against what they perceive as a dogmatic attack on their religious beliefs. Beginning in the 1970s, such activists sought to promote a Biblebased curriculum known as scientific creationism as either a complement or an alternative to the standard Darwinist curriculum advocated by the National Academy of Sciences. And so the battle lines were drawn. When confronted with a conflict between establishment science and religious fundamentalism, most lawyers have assumed that the law clearly favors the former. And indeed, although the creationists won some battles in state legislatures during the 1980s, they clearly lost the war in the courts. In McLean v. Arkansas Board of Educ. 1 and Edwards v. Aguillard, 2 the courts ruled that teaching scientific creationism or creation-science would have resulted in an unconstitutional advancement of religion. Media reports have F. Supp (E.D. Ark. 1982) U.S. 578 (1987).

3 No. 1] TEACHING THE ORIGINS CONTROVERSY 41 portrayed all subsequent local controversies as reruns of these earlier battles some even invoking imagery from the Scopes trial from the 1920s. 3 Such reports have, unfortunately, served to obscure rather than illuminate the legal issues that school boards and their lawyers now increasingly face. Not only are the legal issues surrounding the Edwards decision more complex than often reported, but the challenge to the Darwinian curriculum in public education has now changed. Indeed, as the new century begins, a school board lawyer is far less likely to confront a religion-based challenge to the current biology curriculum than he is to face a situation resembling the one portrayed in the following hypothetical: John Spokes has been teaching biology for several years at a public high school in Middletown, Anystate. In previous years, Spokes has spent several class periods discussing Darwin s theory of evolution, providing students with a clear overview of the standard evidence and arguments for contemporary Darwinian 4 theory, as well as key concepts such as natural selection, random mutation, and descent with modification that students need in order to understand the theory. In addition to describing how biological evolution explains the origin of new living forms from existing forms, he also has discussed how the theory of chemical evolution explains the origin of the first life starting from simple chemicals. In his discussion of these theories, Spokes provided a standard textbook treatment, never departing from the strictly naturalistic or materialistic renderings of these theories that textbooks present. Thus, he explained that the evolutionary process is random and undirected and that it occurs without either plan or purpose as some textbooks phrase it. 5 He has also explained that Darwin s theory explains the appearance of design in living organisms by the impersonal mechanism of natural selection, and thus envisions no role for a guiding hand or intelligent designer in the origin of new life forms. 6 Following Ayala, and other prominent biologists and biology 3 See John Gibeaut, Evolution of a Controversy, A.B.A. J., Nov. 1999, at 50, Throughout this article we will refer to this view as Darwinian or Darwinist. Although in this article we sometimes carefully distinguish between classical Darwinian, contemporary neo-darwinian and chemical evolutionary theories, we also use the term Darwinian or Darwinist to refer to all purely naturalistic theories of evolution indeed, those that deny any role for a designing intelligence in the history of life. As will be discussed in greater detail below, the central feature of a Darwinist theory is that it regards the apparent design of living things as merely apparent. Moreover, the term creationism is misleading because it suggests that those who are opposed to Darwinism base their opposition on a literal reading of the Book of Genesis. See discussion infra Part V.A. 5 KENNETH R. MILLER & JOSEPH LEVINE, BIOLOGY 658 (4th ed. 1998). 6 See CHARLES DARWIN, THE ORIGIN OF SPECIES 130, (Penguin Books 1968).

4 42 UTAH LAW REVIEW [2000: 39 textbook writers, Spokes has described Darwin s greatest accomplishment as precisely his ability to explain the apparent design of living systems without resort to a Creator or other external agent. 7 Despite regular assurances to his students that evolutionary theory does not conflict with religious belief, Spokes has encountered increasing criticism of his teaching methods over several years. True, some parents (and students) complain that his lessons conflict with the Bible. Yet others have begun to complain that his lectures make a selective presentation of the scientific evidence. This disturbs Spokes. After one conversation with several parents, including a local physician and geneticist, Spokes agrees to read several books and articles that they say will provide a specifically scientific critique of contemporary Darwinian and chemical evolutionary theory. To his surprise, Spokes finds himself impressed with much of what he reads. Articles from the American Biology Teacher, for example, document rather egregious errors in textbooks presentations errors which have the effect of overstating the evidential case for neo- Darwinian and chemical evolutionary theory. 8 Spokes is disturbed to find that many of the icons of evolution found in his textbook, such as Haeckel s falsified embryological drawings, the peppered moths, and the Miller-Urey experiment, are seriously misleading. 9 Other scientific articles suggest that textbooks commit many errors of omission errors that understate the evidential difficulties with neo- Darwinian claims. In his reading, Spokes learns about the so-called Cambrian explosion, a term describing the sudden appearance of most of the major animal phyla (or body plans ) in the Cambrian period (530 mya), in clear contradiction to Darwinian expectations about the fossil record. Spokes also notices that scientists writing in technical journals openly discuss the challenge that these data pose to the neo-darwinian prediction of gradual step-by-step change. 10 Yet Spokes knows that most basal biology texts do not even mention the Cambrian explosion, let alone that it might challenge contemporary Darwinism. Spokes s reading on the Cambrian explosion sensitizes him to another issue one of definition. Spokes begins to suspect that textbooks have created confusion by using the term evolution as though it were a unitary concept, even though it can refer to everything 7 Francisco J. Ayala, Darwin's Revolution, in CREATIVE EVOLUTION 1, 4 5 (John H. Campbell & J. William Schopf eds. 1994). 8 See Jonathan Wells, Haeckel s Embryos & Evolution: Setting the Record Straight, 61 AM. BIOLOGY TCHR. 345, (1999); Gordon C. Mills et al., Origin of Life & Evolution in Biology Textbooks A Critique, 55 AM. BIOLOGY TCHR. 78, (1993). 9 JONATHAN WELLS, ICONS OF EVOLUTION (2000). 10 See infra note 73 and accompanying text.

5 No. 1] TEACHING THE ORIGINS CONTROVERSY 43 from the universal common ancestry thesis, to small-scale change, to large-scale innovation via a strictly mindless material mechanism. 11 Moreover, technical literature suggests that while Darwin s mechanism of natural selection acting on random variations explains small-scale micro-evolutionary changes (such as the beak size and shape of the Galapagos finches), it fails to explain the large scale macroevolutionary transformations required to build novel organs, body plans, and morphological structures. 12 It now seems to Spokes that the equivocal use of terminology has led, again, to overstating the scientific consensus about the sufficiency of neo-darwinism. The failure to define terms also seems to have created an all or nothing approach to the subject of evolution that has prevented careful consideration of separate propositions and a variety of possible views. For example, by now Spokes has read about a number of scientists who accept evolution in one or more of the senses described above, but who do not accept the classical Darwinian explanation of apparent design. Indeed, he notices that many scientists now question whether natural selection (and other similarly naturalistic mechanisms) can explain away all instances of apparent design, as classical Darwinism and modern neo-darwinism assert. Some of these scientists argue that certain features of living systems such as irreducibly complex molecular machines in cells, or the information content of the DNA molecule, suggest real design by a purposeful or intelligent agent. Spokes finds these ideas provocative and fascinating, though not altogether congenial to his own way of thinking. Nevertheless, he admits that the scientists advancing these ideas have excellent credentials and appeal to scientific evidence not religious authority. He finds a book by biochemist Michael Behe, Darwin s Black Box, 13 particularly impressive in this regard. After two summers of reading such materials, Spokes finds himself in a quandary. Spokes is not entirely sure how to incorporate what he has read into the way he teaches his high school students. For one thing, he is not politically naive. He has read statements issued by the 11 See Keith Stewart Thomson, Marginalia: The Meanings of Evolution, AM. SCIENTIST, Sept.-Oct. 1982, at 529, Indeed, he finds that many distinguished biologists (e.g., Stuart Kauffman, Rudolf Raff, George Miklos, James Valentine) openly acknowledge that small-scale microevolutionary changes cannot be extrapolated to explain large-scale macro-evolutionary innovation. As one group of scientists put it, natural selection can explain the survival, but not the arrival, of the fittest. Scott Gilbert et al., Resynthesizing Evolutionary and Developmental Biology, 173 DEVELOPMENTAL BIOLOGY 357, 361 (1996). 13 MICHAEL J. BEHE, DARWIN S BLACK BOX (1996).

6 44 UTAH LAW REVIEW [2000: 39 National Academy of Sciences, 14 the National Association of Biology Teachers, 15 and the American Association for the Advancement of Science, 16 which urge him to ignore any criticism of Darwinism as unscientific and religiously motivated. He realizes that he may be accused of attacking science, or teaching creationism, or even bringing religion into the science classroom. Still, he finds it troubling that his students learn nothing of important differences of opinion among scientists, and he is confident that, regardless of anyone else s motivation, his motivation is only to teach the controversy 17 and to discuss scientific evidence and how scientists interpret it differently. Spokes decides that at a minimum he must modify his presentation to reflect the additional information and diversity of scientific opinion that he has encountered in his study. In addition to presenting evidence and arguments for the standard biological and chemical evolutionary theory as he has done before, he plans four changes in his pedagogy. First, he wants to correct the blatant factual errors in his textbook that overstate the evidential case for neo-darwinian and chemical 14 See NATIONAL ACADEMY OF SCIENCE, TEACHING ABOUT EVOLUTION AND THE NATURE OF SCIENCE 4 (1998): Those who oppose the teaching of evolution in public schools sometimes ask that teachers present the evidence against evolution. However, there is no debate within the scientific community over whether evolution occurred, and there is no evidence that evolution has not occurred. Some of the details of how evolution occurs are still being investigated. But scientists continue to debate only the particular mechanisms that result in evolution, not the overall accuracy of evolution as the explanation of life s history. 15 The National Association of Biology Teachers issued the following statement on teaching evolution: The same examination, pondering and possible revision have firmly established evolution as an important natural process explained by valid scientific principles, and clearly differentiate and separate science from various kinds of nonscientific ways of knowing, including those with a supernatural basis such as creationism. Whether called creation science, scientific creationism, intelligent-design theory, young-earth theory or some other synonym, creation beliefs have no place in the science classroom. Explanations employing non naturalistic or supernatural events, whether or not explicit reference is made to a supernatural being, are outside the realm of science and not part of a valid science curriculum. Evolutionary theory, indeed all of science, is necessarily silent on religion and neither refutes nor supports the existence of a deity or deities. Id. app. C. at See id. ( The Commission on Science Education of the American Association for the Advancement of Science, is vigorously opposed to attempts by some boards of education, and other groups to require that religious accounts of creation be taught in science classes. ). 17 John Angus Campbell, Intelligent Design, Darwinism, and the Philosophy of Public Education, 1 RHETORIC & PUB. AFF. 469, 487 (1998).

7 No. 1] TEACHING THE ORIGINS CONTROVERSY 45 evolutionary theory. Second, he intends to tell students about the evidential challenges to these theories that current textbooks fail to mention. Third, he wants to define the term evolution without equivocation and to distinguish clearly between those senses of the term that enjoy widespread support among scientists and those that remain controversial, even if only among a minority of scientists. Finally, he wants to tell his students that a growing minority of scientists do see evidence of real, not just apparent, design in biological systems. Wisely, Spokes decides to bring his plan to his principal, and ultimately to the school board, to be sure he is on safe ground. Is he? Although this portrait of Spokes is hypothetical, 18 the issues it raises are not. Indeed, an increasing number of teachers around the country have begun to implement very similar changes to their own biology curriculum, often, though not always, creating controversy. 19 School boards, fearing both ideological strife and costly litigation, have often not known how to react to such teachers. On the one hand, forbidding any dissent from Darwinian theory smacks of censorship. On the other, even school board members sympathetic to such changes assume that federal law forbids science educators to deviate from an exclusively Darwinian curriculum. In short, many school boards do not know what the law allows. This article will attempt to clarify what the law does allow teachers to teach in their biology classrooms. In the process, it will answer three key questions necessary to deciding the legal status of Spokes s proposed curriculum. These are:! Is It Science? Are Spokes s intended changes in his biology curriculum scientific? Is his plan to correct and critique textbook presentations of neo-darwinism scientific? Are the alternative 18 A recent article describes one such case. See Gibeaut, supra note 3, at For an additional case, see Daniel J. Pinchot, Moon Mulls Biblical Biology Three Years After Suit, Board Wants to Get Creation in Classes, PITTSBURGH POST-GAZETTE, Aug. 29, 1997, at B-1. More recently, a biology teacher was reassigned because he taught intelligent design as part of his treatment of the origins issue. See Marjorie Coeyman, Evolution Gets Dismissed from Some Classes, CHRISTIAN SCI. MONITOR, August 16, 1999, at See Creationist Book to Be Used in Burlington Biology Teacher Questions Evolutionary Theory, SEATTLE TIMES, June 14, 1999, at B3; Barbara Galloway, Group Asks Alternative to Theory of Evolution; Louisville Activists Say Darwin Camp Has Monopoly, AKRON BEACON J., February 13, 1995, at A1; Laurie Goodstein, Scientists Take New Look at Creationism, HOUSTON CHRON., January 10, 1998, at 1; Jennifer Juarez Robles & Matt Helms, Schools Consider Creationism, DETROIT FREE PRESS, November 11, 1997, at 1B; Andrea Schoellkopf, Proposed Science Curriculum Would Allow Creationism, ALBUQUERQUE J., October 29, 1997, at 1.

8 46 UTAH LAW REVIEW [2000: 39 theories that Spokes wants to present (including the theory of intelligent design) scientific?! Is It Religion? Does Spokes s plan to correct and critique textbook presentations of neo-darwinism constitute an establishment of religion? Does Spokes s plan to expose his students to evidence of design and design theory qualify as teaching religion? Does the First Amendment prevent the presentation of this point of view?! Is It Speech? Do Spokes s plans to correct and critique textbook presentations of neo-darwinism, and to expose students to the alternative theory of intelligent design, enjoy protection under the First Amendment, either in the prohibition of viewpoint discrimination, or as an exercise of academic freedom? Before addressing these questions, however, we must first place them in a broader historical context. II. A BRIEF HISTORY OF THE ORIGINS CONTROVERSY A. Classical Science-Based Design Arguments Prior to the publication of The Origin of Species by Charles Darwin in 1859, many Western thinkers, for over two thousand years, had answered the question how did life arise? by invoking the activity of a purposeful designer or creator. Design arguments based upon observations of the natural world were made by Greek and Roman philosophers such as Plato 20 and Cicero, 21 by Jewish philosophers such as Maimonides, and by Christian thinkers such as Thomas Aquinas. 22 The idea of design also figured centrally in the modern scientific revolution ( ). 23 As historians of science have often pointed out, many of the founders of early modern science assumed that the natural world was intelligible precisely because they also assumed that it had been designed by a rational mind. In addition, many individual scientists Johannes Kepler in astronomy, 24 John Ray ( ) in biology, 25 Robert Boyle ( See PLATO, THE LAWS 279 (A.E. Taylor trans., 1969). 21 See CICERO, DE NATURA DEORUM 217 (H. Rackham trans., Harvard Univ. Press 1933). 22 Aquinas used the argument from design as one of his proofs for the existence of God. See JOHN HICK, ARGUMENTS FOR THE EXISTENCE OF GOD 1 (1971). 23 See Neal C. Gillespie, Natural History, Natural Theology, and Social Order: John Ray and the Newtonian Ideology, 20 J. HIST. BIOLOGY 1, passim (1987). 24 See JOHANNES KEPLER, HARMONIES OF THE WORLD 170, 240 (Charles Glen Wallis trans., Prometheus Books 1995) (1619); JOHANNES KEPLER, MYSTERIUM COSMOGRAPHICUM [THE SECRET OF THE UNIVERSE] (A.M. Duncan trans., Arabis Books, Inc. 1981)

9 No. 1] TEACHING THE ORIGINS CONTROVERSY ) in chemistry 26 made specific design arguments based upon empirical discoveries in their respective fields. This tradition attained an almost majestic rhetorical quality in the writing of Sir Isaac Newton, who made both elegant and sophisticated design arguments based upon biological, physical, and astronomical discoveries. Writing in the General Scholium to the Principia, Newton suggested that the stability of the planetary system depended not only upon the regular action of universal gravitation, but also upon the very precise initial positioning of the planets and comets in relation to the sun. As he explained: [T]hough these bodies may, indeed, continue in their orbits by the mere laws of gravity, yet they could by no means have at first derived the regular position of the orbits themselves from those laws... [Thus] [t]his most beautiful system of the sun, planets, and comets, could only proceed from the counsel and dominion of an intelligent and powerful Being. 27 Or as he wrote in the Opticks: How came the Bodies of Animals to be contrived with so much Art, and for what ends were their several parts? Was the Eye contrived without Skill in Opticks, and the Ear without Knowledge of Sounds?... And these things being rightly dispatch d, does it not appear from Phænomena that there is a Being incorporeal, living, intelligent, omnipresent Despite the objections of some enlightenment philosophers, notably David Hume, science-based design arguments continued well into the early nineteenth century, especially in biology. William Paley s ( ) (1596);. Kepler s belief that the work of God is evident in nature is illustrated by his statement in the Harmonies of the World that God by the light of nature promote[s] in us the desire for the light of grace, that by its means [God] mayest transport us into the light of glory. KEPLER, HARMONIES OF THE WORLD, at 240. See also MORRIS KLINE, MATHEMATICS: THE LOSS OF CERTAINTY 39 (1980) ( The strength of Copernicus s and Kepler s conviction that God must have designed the world harmoniously and simply can be judged by the objections with which they had to contend. ). 25 See JOHN RAY, THE WISDOM OF GOD MANIFESTED IN THE WORKS OF THE CREATION (3d ed. 1701). 26 See ROBERT BOYLE, SELECTED PHILOSOPHICAL PAPERS OF ROBERT BOYLE 172 (M.A. Stewart ed. 1979). 27 NEWTON S PRINCIPIA MOTTE S TRANSLATION REVISED (Andrew Motte trans. & Florian Cajori rev. 1934) (1686). 28 SIR ISAAC NEWTON, OPTICKS (Dover Publications 1952).

10 48 UTAH LAW REVIEW [2000: 39 Natural Theology, published in 1803 (several years after Hume s criticism of the design argument), is the most notable example. Paley s work catalogued a host of biological systems that suggested the work of a superintending intelligence. He argued that the astonishing complexity and superb adaptation of means to ends in such systems could not originate strictly through the blind forces of nature, any more than could a complex machine such as a pocket watch. 29 B. Darwin and the Eclipse of Design Acceptance of the design argument finally began to abate during the late nineteenth century with the emergence of increasingly powerful materialistic explanations of apparent design, particularly Charles Darwin s theory of evolution by natural selection. 30 Darwin argued in 1859 that living organisms only appeared to be designed. To make this case, he proposed a concrete mechanism, natural selection acting on random variations, that could explain the adaptation of organisms to their environment (and other evidences of apparent design) without actually invoking an intelligent or directing agency. Darwin saw that natural forces would accomplish the work of a human breeder, and thus that blind nature could come to mimic, over time, the action of a selecting intelligence a designer. If the origin of biological organisms could be explained naturalistically, 31 as Darwin argued, then explanations invoking an intelligent designer were unnecessary and even vacuous. 32 Even so, natural selection as a causal mechanism had a mixed reception in the immediate post-darwinian period. As the historian of biology Peter Bowler has noted, classical Darwinism entered a period of eclipse, in part because Darwin lacked a theory of the origin and transmission of new heritable variation. 33 By the late 1930s and 1940s, however, natural selection 29 See WILLIAM PALEY, NATURAL THEOLOGY passim (1803). 30 For a discussion of this methodological shift, see NEIL C. GILLESPIE, CHARLES DARWIN AND THE PROBLEM OF CREATION passim (1979). 31 The effort to explain biological organisms was reinforced by a trend in science to provide fully naturalistic accounts for other phenomena such as the precise configuration of the planets in the solar system (Laplace) and the origin of geological features (Lyell and Hutton). It was also reinforced (and in large part made possible) by an emerging positivistic tradition in science that increasingly sought to exclude appeals to supernatural or intelligent causes from science by definition. See id. 32 See CHARLES DARWIN, ON THE ORIGIN OF SPECIES (Harvard Univ. Press 1964). 33 See PETER J. BOWLER, THEORIES OF HUMAN EVOLUTION: A CENTURY OF DEBATE, , at (1986). Natural selection, as Darwin well understood, could accomplish nothing without a steady supply of genetic variation, the ultimate source of new

11 No. 1] TEACHING THE ORIGINS CONTROVERSY 49 was revived as the main engine of evolutionary change as developments in a number of fields helped to clarify the nature of genetic variation. 34 The resuscitation of the variation/natural selection mechanism by modern genetics and population genetics became known as the neo-darwinian synthesis. According to the new synthetic theory of evolution, the mechanism of natural selection acting upon random variations (especially including small-scale mutations) sufficed to account for the origin of novel biological forms and structures. Small-scale microevolutionary changes could be extrapolated indefinitely to account for large-scale macroevolutionary development. With the revival of natural selection, the neo-darwinists would assert, like Darwinists before them, that they had found a designer substitute that could explain the appearance of design in biology as a result of the action of a wholly natural mechanism. 35 As Harvard evolutionary biologist Ernst Mayr has explained, [T]he real core of Darwinism... is the theory of natural selection. This theory is so important for the Darwinian because it permits the explanation of adaptation, the design of the natural theologian, by natural means. 36 C. Problems with the Neo-Darwinian Synthesis and the Re-emergence of Design Since the late 1960s, the modern synthesis that emerged during the 1930s and 40s has begun to unravel in the face of new developments in paleontology, systematics, molecular biology, genetics, and developmental biology. Since then a series of technical articles and books including such recent titles as Evolution a Theory in Crisis (1986) by Michael Denton, Darwinism: The Refutation of a Myth (1987) by Soren Lovtrup, The Origins of Order (1993) by Stuart A. Kauffman, How The Leopard Changed Its Spots (1994) by Brian C. Goodwin, Reinventing Darwin (1995) by Niles biological structure. Nevertheless, both the blending theory of inheritance that Darwin had assumed and the classical Mendelian genetics that soon replaced it, implied limitations on the amount of genetic variability available to natural selection. This in turn implied limits on the amount of novel structure that natural selection could produce. 34 See id. passim. 35 [T]he fact of evolution was not generally accepted until a theory had been put forward to suggest how evolution had occurred, and in particular how organisms could become adapted to their environment; in the absence of such a theory, adaptation suggested design, and so implied a creator. It was this need which Darwin's theory of natural selection satisfied. JOHN MAYNARD SMITH, THE THEORY OF EVOLUTION 30 (Penguin Books 3d ed. 1975). 36 Ernst Mayr, Foreword to MICHAEL RUSE, DARWINISM DEFENDED, xi-xii (1982).

12 50 UTAH LAW REVIEW [2000: 39 Eldredge, The Shape of Life (1996) by Rudolf A. Raff, Darwin s Black Box (1996) by Michael Behe, The Origin of Animal Body Plans (1997) by Wallace Arthur, Sudden Origins: Fossils, Genes, and the Emergence of Species (1999) by Jeffrey H. Schwartz have cast doubt on the creative power of neo-darwinism s mutation/selection mechanism. As a result, a search for alternative naturalistic mechanisms of innovation has ensued with, as yet, no apparent success or consensus. So common are doubts about the creative capacity of the selection/mutation mechanism, neo-darwinism s designer substitute, that prominent spokesmen for evolutionary theory must now periodically assure the public that just because we don t know how evolution occurred, does not justify doubt about whether it occurred. 37 As Niles Eldredge wrote as early as 1982: most observers see the current situation in evolutionary theory where the object is to explain how, not if, life evolves as bordering on total chaos. 38 Or as Stephen Gould wrote in 1980, the neo-darwinism synthesis is effectively dead, despite its continued presence as textbook orthodoxy. 39 Indeed, scientists writing in technical journals across the subdisciplines of biology have questioned neo-darwinian theory on many evidential and theoretical grounds, including: (1) The neo-darwinian mechanism of natural selection acting on random variations does not seem sufficient to produce: (a) novel specified genetic information, There is absolutely no disagreement among professional biologists on the fact that evolution has occurred.... But the theory of how evolution occurs is quite another matter, and is the subject of intense dispute. Douglas Futuyma, Evolution as Fact and Theory, 56 BIOS 3, 8 (1985). Of course, to admit that natural selection cannot explain the appearance of design is in effect to admit that it has failed to perform the role that is claimed for it as a designer substitute. 38 Niles Eldredge, An Ode to Adaptive Transformation, 296 NATURE 508 (1982). 39 Stephen Jay Gould, Is a New and General Theory of Evolution Emerging? 6 PALEOBIOLOGY 119, (1980). 40 One of the most significant doubts about the creative power of the mutation/selection mechanism has followed directly from the elucidation of the nature of genetic information by molecular biologists in the 1950s and 60s. At first the discovery that the genetic information on DNA is stored as a linear array of precisely sequenced nucleotide bases (the A s, T s, G s and C s discussed above) helped to clarify the nature of many mutational processes. Nevertheless, it also soon suggested limitations in the amount of genetic novelty that random mutations could produce. Just as a sequence of letters in an English text might be altered either by changing individual letters one by one or combining and recombining whole sections of text, so too did it occur to biologists that different lengths of genetic text might combine and recombine in various ways at random. And, indeed, modern genetics has established various mechanisms of mutational change duplications, insertions, inversions,

14 52 UTAH LAW REVIEW [2000: 39 (3) The pattern of sudden appearance, missing transitional forms, 45 and stasis in the fossil record as seen in the Cambrian explosion, the marine Mesozoic revolution, and the big bloom of angiosperm plant life, for example does not conform to neo-darwinian expectations about the history of life. 46 (4) Evidence from developmental biology suggests clear limits to the amount of evolutionary change that organisms can undergo, casting doubt on the Darwinian theory of common descent, and suggesting a reason for morphological stasis in the fossil record. 47 (5) Many homologous structures (and even some proteins) derive from nonhomologous genes, 48 while many dissimilar structures derive from similar genes, in both cases contradicting neo-darwinian expectations According to Stephen Jay Gould, [t]he extreme rarity of transitional forms in the fossil record persists as the trade secret of paleontology. The evolutionary trees that adorn our textbooks have data only at the tips and nodes of their branches; the rest is inference, however reasonable, not the evidence of fossils. Stephen Jay Gould, Evolution s Erratic Pace, NAT. HIST., May 1977, at 12, The trilobite specialist Niles Eldredge, for instance, of the American Museum in New York, and one of the authors of the hypothesis of punctuated equilibria, describes commencing his work on the trilobite genus Phacops, sampling Middle Devonian strata across the United States, only to discover to his dismay that the trilobites were not varying smoothly and gradually between species, as theory predicted. See NILES ELDREDGE, REINVENTING DARWIN: THE GREAT DEBATE AT THE HIGH TABLE OF EVOLUTIONARY THEORY passim (1995). Indeed, the fossil record as a whole proved so disturbing to traditional Darwinism that Eldredge and Stephen Gould rejected the gradualist neo-darwinism model of evolutionary change in favor of a theory known as punctuated equilibrium. According to punctuated equilibrium, the fossil record shows long periods of stability punctuated by abrupt changes, resulting in entirely new organisms. Punctuated equilibrium reduces the conflict with the fossil record, but does so at the cost of abandoning a sufficient explanatory mechanism for the appearance of biological novelty the very thing that made Darwin s theory initially so attractive as a designer substitute. See D. Raup, Conflicts Between Darwin and Paleontology, 50 FIELD MUSEUM NAT. HIST. BULL., Jan. 1979, at 22, 22 29; Jeffrey H. Schwartz, Homeobox Genes, Fossils, and the Origin of Species, 257 ANATOMICAL REC. [New Anat.] 15,15 31 (1999). 47 See A.D. Bradshaw, Genostasis and the Limits to Evolution, 333 Series B TRANSACTIONS ROYAL SOC Y LONDON 289, (1991); Brian K. Hall, Baupläne, Phylotypic Stages, and Constraint: Why There Are So Few Types of Animals, 29 EVOLUTIONARY BIOLOGY 215, (1996); Kazuo Kawano, How Far Can the Neo- Darwinism Be Extended? A Consideration from the History of Higher Taxa in Coleoptera, 91 RIVISTA DI BIOLOGIA / BIOLOGY FORUM 31, (1998). 48 See GAVIN DE BEER, HOMOLOGY: AN UNSOLVED PROBLEM passim (1971); MICHAEL DENTON, EVOLUTION: A THEORY IN CRISIS (1986). 49 See JOHN GERHART & MARC KIRSCHNER, CELLS, EMBRYOS, AND EVOLUTION (1997); John A. Davison, Semi-Meiosis As an Evolutionary Mechanism, 111 J. THEORETICAL BIOLOGY 725, (1984); W.J. Dickinson, Molecules and Morphology:

18 56 UTAH LAW REVIEW [2000: 39 Basal biology textbooks have almost universally failed to report these and other difficulties found in recent technical literature. 58 Instead, standard textbooks continue to affirm both neo-darwinian and chemical evolutionary theory unequivocally and without qualification. Moreover, as noted in our hypothetical, many texts continue to include significant factual errors, either of omission or commission though Spokes is hypothetical, the problems in the texts are not. 59 III. MAY SPOKES TEACH CRITICISM? It may seem obvious that there can be no rationally defensible grounds for preventing teachers from exposing students to well-documented scientific critique of a theory or obsolete textbook material. Nevertheless, teachers like Spokes often feel an understandable reluctance to break with textbook orthodoxy and expose students to articles and other supplementary materials documenting problems with neo-darwinism or its textbook presentation. Indeed, many official spokespersons for an exclusively Darwinist curriculum now treat any criticism of neo-darwinian (or chemical evolutionary) theory as tantamount to an attack on science itself. Others assume that criticism necessarily derives from religious motive or equate critique with advocacy of creationism. This rhetorical strategy fails for several reasons. First, it implicitly equates a particular theory of biological origins albeit a long dominant one with the science of biology itself. In no other field would such a selfserving rhetoric stand unchallenged for long. Imagine the Freudians equating psychology with the Freudian theory of the mind or the advocates of phlogiston equating their theory with the field of chemistry itself. Science has long involved theoretical competition among multiple competing hypotheses and explanations. Science, therefore, requires criticism as well as the articulation and defense of reigning theories. Thus, those biologists who seek to insulate their preferred theories from critique by rhetorical gerrymandering that is, by equating dominant evolutionary theories with 58 See CURTIS & BARNES, INVITATION TO BIOLOGY passim (5th ed. 1994); DOUGLAS J. FUTUYMA, EVOLUTIONARY BIOLOGY passim (3d ed. 1998); GUTTMAN, BIOLOGY passim (1999); STARR & TAGGART, BIOLOGY: THE UNITY AND DIVERSITY OF LIFE passim (8th ed. 1998); Mills et al., supra note 8, at 78 83; Jonathan Wells, Haeckel s Embryos & Evolution: Setting the Record Straight, 61 AM. BIOLOGY TCHR. 345, (1999); Jonathan Wells, Second Thoughts About Peppered Moths, SCIENTIST, May 24, 1999, at See Mills et al., supra note 8, at

19 No. 1] TEACHING THE ORIGINS CONTROVERSY 57 science itself and then treating all criticism of such theories as necessarily unscientific themselves act in a profoundly unscientific manner. Note, secondly, the list of evidential difficulties cited above. Each can be found in standard scientific journals journals such as Paleobiology or Developmental Biology or Natural History. Of course, some religiouslymotivated creationists may want to make polemical use of these evidential difficulties. Yet, that does not mean that scientific critique of neo-darwinism necessarily conceals a religious motive, if indeed motive is even germane to deciding the scientific legitimacy of this critique. In any case, the pedagogical issue is not the motive of the critics, but the existence of specifically empirical critique of neo-darwinian and chemical evolutionary theory that textbooks do not report to students. Spokes wants to eliminate this disparity between textbook presentations and the current state of the scientific discussion of the issue. This hardly seems to constitute either religious or unscientific activity. To illustrate this point more concretely, consider an example mentioned above. Origin-of-life researchers now acknowledge that Stanley Miller s famous experiment simulating the production of amino acids under allegedly pre-biotic early earth conditions does not support chemical evolutionary theory. Origin-of-life scientists, including Miller himself, 60 now admit that no evidence supports the strongly reducing mixture of gases that Miller assumed in his 1953 experiment. Indeed, considerable geochemical evidence now contradicts that assumption. 61 They also know that if simulation experiments are rerun with more realistic mixtures of gases they do not produce amino acids in any appreciable yields. Yet most basal biology textbooks do not report any of these scientific developments. 62 If Spokes reports these developments, can anyone credibly maintain that he has acted in an unscientific or religious manner? Instead, Spokes critics act in a most illiberal way. By stigmatizing critique as either unscientific or religious, advocates for the exclusive presentation of orthodox evolutionary theories discourage teachers from teaching students what scientists actually know and report in their technical journals, and encourage instead the presentation of a simplistic caricature of scientific method and the origins controversy. 60 See Antonio Lazcano & Stanley L. Miller, The Origin and Early Evolution of Life: Prebiotic Chemistry, the Pre-RNA World, and Time, 85 CELL 793, 793 (1996); Stanley L. Miller, The Prebiotoc Synthesis of Organic Compounds As a Step Toward the Origin of Life, in MAJOR EVENTS IN THE HISTORY OF LIFE 5 (J. William Schopf ed., 1993). 61 See, e.g., Thaxton & Bradley, Information and Origin, supra note 56, at See KENNETH R. MILLER & JOSEPH LEVINE, BIOLOGY 344 (4th ed. 1998); ALTON L. BIGGS ET AL., BIOLOGY: THE DYNAMICS OF LIFE (1991).

20 58 UTAH LAW REVIEW [2000: 39 Of course, some Darwinist advocacy groups have expressed concern that providing critique of, as well as evidence and arguments for, orthodox evolutionary theories would confuse students. 63 But clearly students would not be well served by presenting a false picture of agreement where in fact there is controversy. Indeed, even a prominent Darwinist, Will Provine, has complained that this failure to present the controversy makes science education deadly dull and robs it of the interest that would motivate students. 64 Granted, textbook presentations in many fields fail to capture the full richness and detail of front-line research. But the errors of fact in many basal biology texts do not seem to reflect mere oversimplifications. Instead, many are egregious, easy to correct, and almost universally overstate the evidential support for orthodox evolutionary theories. Thus, there is every reason to encourage Spokes to speak to students about the existence of evidential criticism of neo-darwinism in the scientific literature and to correct textbooks where they are clearly in error. Of course, the question of the legitimacy of Spokes s intended curricular change involves another issue. Recall that Spokes does not intend merely to expose students to scientific critique of neo-darwinism. He also now intends to teach them about an alternative theory known as the theory of intelligent design or design theory that directly challenges a key proposition of both neo-darwinian and chemical evolutionary theory, namely, the denial of actual design in biology. Of course, if the neo-darwinian mechanism cannot explain the origin of apparent design, as many biologists have argued, then some scientists will quite reasonably want to reconsider the possibility of actual (i.e., intelligent) design as an alternative explanation. Not surprisingly, many scientists have done exactly that and teachers like Spokes will increasingly want to tell their students about this development in science. Nevertheless, Spokes s desire to teach about design raises additional issues. Some have argued that design theory does not qualify as a scientific theory. Others have maintained that it constitutes an establishment of religion, or at least a religious theory. To assess the legality of Spokes s entire curriculum, therefore, requires making an assessment of the scientific and religious status of design theory. Before we can do this we must review the main tenets and features of this theory. 63 See Eugenie C. Scott, Keep Science Free from Creationism, INSIGHT, Feb. 21, 1994, at 29, 29; U.S. Commission on Civil Rights, Hearings, Seattle Washington, Aug. 21, 1998 <http://w1.548.telia.com/~ /civilright.html>. 64 See William B. Provine, Review of NATIONAL ACADEMY OF SCIENCES, TEACHING ABOUT EVOLUTION AND THE NATURE OF SCIENCE <http://fp.bio.utk.edu/darwin/nas guidebook/provine_1.html>.

Introduction: Is it intellectually feasible to believe that a supernatural, intelligent being (God) created the world, the universe, and all living things? OR Is evolution a scientific fact that has empirically

Teaching Evolution in a Climate of Controversy Meshing Classroom Practice with Science and Common Sense Kenneth R. Miller Brown University Preliminary Notes The issues that confront all educators in the

From the SelectedWorks of Gary E. Silvers Ph.D. 2014 The Advancement: A Book Review Gary E. Silvers, Ph.D. Available at: http://works.bepress.com/dr_gary_silvers/2/ The Advancement: Keeping the Faith in

Chapter 1 What is Biology? Worksheets (Opening image copyright by Kirsty Pargeter, 2010. Used under license from Shutterstock.com.) Lesson 1.1: Science and the Natural World Lesson 1.2: Biology: The Study

Biological kinds and the causal theory of reference Ingo Brigandt Department of History and Philosophy of Science 1017 Cathedral of Learning University of Pittsburgh Pittsburgh, PA 15260 E-mail: inb1@pitt.edu

An essay concerning the controversy In this essay I will discuss the ongoing controversy on the subject of teaching Intelligent Design (ID) in high school science classes. The objection against teaching

1.1 The student is able to convert a data set from a table of numbers that reflect a change in the genetic makeup of a population over time and to apply mathematical methods and conceptual understandings

Scientific Revolution Learning Objective Students will be able to: * define the Scientific Revolution * identify the historical roots of modern science. (a historical root is the start of something) The

Samuel Butler wrote, Though analogy is often mislaeading, it is the least misleading thing we have. In explaining complex scientific theories to non-scientists, scientists often make use of the analogy.

Ch. 13 How Populations Evolve Name Period California State Standards covered by this chapter: Evolution 7. The frequency of an allele in a gene pool of a population depends on many factors and may be stable

5 DARWIN, EVOLUTION & FAITH 850L DARWIN, EVOLUTION & FAITH By John F. Haught, adapted by Newsela Nothing in modern science is more challenging to religious believers than the theory of evolution. For more

The Next Generation Science Standards and the Life Sciences The important features of life science standards for elementary, middle, and high school levels Rodger W. Bybee Publication of the Next Generation

CASE STUDY JAMES TUTTLE VS. LAKELAND COMMUNITY COLLEGE Patrick Horn, Claremont Graduate University Ryan Robinson, Utah Valley State College In the case of James Tuttle and Lakeland Community College in

CPO Science and the NGSS It is no coincidence that the performance expectations in the Next Generation Science Standards (NGSS) are all action-based. The NGSS champion the idea that science content cannot

1 The Gospel & The Scholars William K. Lewis Fairmont Presbyterian Church College Ministry Team For most of us, our college days are a time in our lives centered around study, research, and learning. We

Darwin s Theory of Evolution Evolution Q: What is natural selection? 16.1 What patterns of biodiversity did Darwin observe aboard the Beagle? WHAT I KNOW SAMPLE ANSWER: On each island that Darwin visited,

Page 1 BIOLOGY Honours Major Upon successful completion of the requirements for a BSc in the Biology 16 Course Honours Major, a student should know, and be able to do the following: A. describe in detail

The Language of Science and Faith By Karl Giberson and Francis Collins Study Guide This study guide will help you focus on key questions as you read. Even though the book tries to offer Straight Answers

9th Grade 9th -12th Grade History - Social Science Historical and Social Sciences Analysis Skills Chronological and Spatial Thinking 1. Students compare and contrast the present with the past, evaluating

1/9 Locke 1: Critique of Innate Ideas This week we are going to begin looking at a new area by turning our attention to the work of John Locke, who is probably the most famous English philosopher of all

Page 1 PHILOSOPHY General Major I. Depth and Breadth of Knowledge. A. Will be able to recall what a worldview is and recognize that we all possess one. B. Should recognize that philosophy is most broadly

5 DARWIN, EVOLUTION & FAITH 1100L DARWIN, EVOLUTION & FAITH By John F. Haught, adapted by Newsela Nothing in modern science has proved more challenging to religious believers than the theory of evolution.

Joshua Baker Philosophy 123 Professor Slinker Laplace's Demon By finishing the work began by Sir Isaac Newton in mathematics, and further applying it to physics and astronomy, French physicist and mathematician

The Meanings of Evolution by Stephen C. Meyer and Michael Newton Keas Evolution and the theories of evolution are fundamentally different things, testified zoologist Maynard M. Metcalf, the first expert

DRAFT TJ PROGRAM OF STUDIES: AP PSYCHOLOGY COURSE DESCRIPTION AP Psychology engages students in a rigorous appraisal of many facets of our current understanding of psychology. The course is based on the

Limited A student performing at the Limited Level demonstrates a minimal command of Ohio s Learning Standards for Biology. A student at this level has an emerging ability to describe genetic patterns of

The Origin of Life I. Introduction: What is life? II. The Primitive Earth III. Evidence of Life s Beginning on Earth A. Fossil Record: a point in time B. Requirements for Chemical and Cellular Evolution:

Australian Curriculum: Science Scope and Sequence by Strands (-10) This document presents scope and sequence documents arranged by the Strands of Science as a Human Endeavour, Science Inquiry Skills and

The Nature of Evolution David L. Alles Western Washington University e-mail: alles@biol.wwu.edu Alles, D. L. (2005). The Nature of Evolution. The American Biology Teacher, Vol. 67, No. 1(Jan), 7-10. What

Evolution and Darwin Evolution The processes that have transformed life on earth from it s earliest forms to the vast diversity that characterizes it today. A change in the genes!!!!!!!! Old Theories of

A Somewhat Higher Opinion of God A conversation with biologist Ken Miller. February 9, 1998 Interview by Karl W. Giberson Ken Miller is professor of biology at Brown University. In addition to his specialized

Evolution Unit Plan Stage 1: Identify Desired Results Title: Evolution of Life Unit Description: Evolution is a topic that is fundamental to the study of Biology, linking areas such as genetics, molecular

The Scientific Controversy Over the Cambrian Explosion Center for Science and Culture/Discovery Institute, 1511 Third Avenue, Suite 808, Seattle, WA 98101 Darwin called his theory "descent with modification."

CH. 15: Darwin s Theory of Evolution Directions: READ ch. 15 in your textbook and use the note outline to help you answer the questions below. 1. What is a theory? 2. Describe some of the ideas that influenced

G u i d e l i n e s f o r K12 Global C l i m a t e Change Education Adapted by: by the National Wildlife Federation from the Environmental Education Guidelines for Excellence of the North American Association

Edexcel GCSE Religious Studies Unit 1 - Believing in God Key Words Agnosticism: Not being sure if god exists or not. Atheist: Believing that God does not exist. Conversion: Changing from one religion to

Chemical Evolution The understanding of the origin of life was largely speculative until the 1920s, when Oparin and Haldane, working independently, proposed a theoretical model for "chemical evolution."

INDEX OF TEMPLATES INTRODUCING WHAT THEY SAY A number of sociologists have recently suggested that X s work has several fundamental problems. It has become common today to dismiss X s contribution to the

Biology BIO Biology Biology is a scientific subject that has its origins in the need of human beings to know more about themselves and the world around them. It is the theory of life, its origins, evolution,

Overview Name Period 1. In the last chapter, you were asked about macroevolution. To begin this chapter, give some examples of macroevolution. Include at least one novel example not in your text. Concept

The Newtonian Synthesis The Mathematical Principles of Natural Philosophy SC/NATS 1730, XVIII 1 The Falling Apple According to Newton, it was while he was in the orchard at Woolsthorpe during the plague

DCI: From Molecules to Organisms: Structures and Processes MS.LS1.B: Growth and Development of Organisms Organisms reproduce, either sexually or asexually, and transfer their genetic information to their

activity 5 Is there life on other worlds? purpose Is there life on other worlds? People have pondered this question since ancient times. But now, for the first time in human history, advances in the biological

Grade Stand Sub-Strand Standard Benchmark OF OF OF A. Scientific World View B. Scientific Inquiry C. Scientific Enterprise understand that science is a way of knowing about the world that is characterized

Lecture 3 The Darwinian Revolution Theories of evolution first developed by the Greek philosophers. Theories of evolution first developed by the Greek philosophers. Anaximander (610-546 BC) wrote about

High School Science Course Correlations between Ohio s 2010 Course Syllabi and the First Draft of the High School NGSS This document correlates the content in Ohio s course syllabi with the performance

Biology 1406 - Notes for exam 5 - Population genetics Ch 13, 14, 15 Species - group of individuals that are capable of interbreeding and producing fertile offspring; genetically similar 13.7, 14.2 Population

Darwin s Theory Covering Miller and Levine Biology Ch16.1 and 16.2 Prevalent Ideas in the 1800 s It was commonly accepted that..... all species were fixed, that they had not changed since they came into

Biology Curriculum The Georgia Performance Standards are designed to provide students with the knowledge and skills for proficiency in science. The Project 2061 s Benchmarks for Science Literacy is used

A response to charges of error in Biology by Miller & Levine According to TEA, a citizen disputes two sentences on page 767 of our textbook, Biology, by Miller & Levine. These sentences are: SE 767, par.

2015 NATIONAL SCIENCE OLYMPIAD AND NEXT GENERATION SCIENCE STANDARDS ALIGNMENT C (HIGH SCHOOL) DIVISION AIR TRAJECTORY Prior to the competition, teams will design, construct, and calibrate a single device

Section 10.1 KEY CONCEPT There were theories of biological and geologic change before Darwin. Early scientists proposed ideas about evolution. Evolution is the biological change process by which descendants

Saint Thomas the Apostle School Grade 7 Life Science Scope and Sequence Jennifer Croze 2015-2016 Major Topic Description Standards Addressed Studying Life Living organisms are often MS-ETS1-1 described

1 Science and Religion Scripture: Colossians 1:15-20 By Pastor John H. Noordhof Williamsburg Christian Reformed Church October 21, 2012 Morning Service People of God: Today we will deal with the troubling

Articles Was the Constitution Illegally Adopted? Michael P. Farris1* Abstract: This article analyzes the claim that the Constitution was illegally ratified in 1788. This claim is founded on the premise

Perspectives in Philosophy Rene Descartes Descartes Philosophy is the search for certainty the search to know, for yourself, what is really true and really false to know which beliefs are reliable. However,

On the Integration of Faith and Discipline David Thomas Professor of History Union University November 2004; revised May 2011 During my decade and a half of service at a Christian university, I have regularly

Subject area: Ethics Title: Injustice causes revolt. Discuss. 1 Injustice causes revolt. Discuss. When we explain phenomena we rely on the assertion of facts. The sun rises because the earth turns on its

Name: Class: Date: ID: A BIO 1: Review: Evolution True/False Indicate whether the statement is true or false. 1. Radiometric dating measures the age of an object by measuring the proportions of radioactive

#2 Claims and Reasons 1 Argument Mapping 2: Claims and Reasons We ll start with the very basics here, so be patient. It becomes far more challenging when we apply these basic rules to real arguments, as

They Say, I Say: The Moves That Matter in Academic Writing Gerald Graff and Cathy Birkenstein ENTERING THE CONVERSATION Many Americans assume that Others more complicated: On the one hand,. On the other

Educational research on teaching the nature and process of science The teaching resources recommended on our site are consistent with what is known about how students learn the nature and process of science.

INTEGRATING APPLIED ETHICS INTO A COLLEGE-LEVEL NON-MAJORS BIOLOGY COURSE Jean Stutz Arizona State University INTRODUCTION The 21st century has been labeled by some as the century of biology most likely

These Standards describe what students who score in specific score ranges on the Science Test of ACT Explore, ACT Plan, and the ACT college readiness assessment are likely to know and be able to do. 13